490
The Green Bag
"A story is told of a judge in Vermont at an early day, before whom an unsealed deed was objected to. 'If a seal had been put upon this deed,' said he to counsel, 'it would have been good, would it not?' Counsel assented. 'A seal ought to have been put on and was omitted by mistake?' Counsel again assented. 'Very well,' said the judge, 'a court of equity sits for the purpose of compelling parties to perform their contracts, and instead of compelling your client to put a seal on this deed, I will put one on myself.' Accordingly, he put on the seal and, saying, 'Now that is a good deed,' over ruled the objection and proceeded with the real controversy. The great judge of the Year Books would have done the same, and the great judges of England today would get at the same result with equal speed by making it clear to counsel that the objection ought to be with drawn." "The Scientific Attitude Toward Reform in Procedure." By Herbert Harley. 75 Central Law Journal 147 (Aug. 23). "With the need and the proper disposition existing, the problem becomes one of practical organization. The profession must shape within itself a definite machine with tools selected for special work. A scientific revision of adjective law must itself depend upon a scientific shaping of means to an end. . . . "The projected organization must shoulder the entire responsibility. Somewhat parallel instances are furnished by the Conference on Uniform State Laws and the American Insti tute of Criminal Law and Criminology. Were it not for the fact that criminal law involves so much of substantive law and penology, the latter organization would be fairly well adapted for the purpose. The projected organization will both serve and employ the Institute and the Con ference as it will the state bar associations and those in cities and counties." "Reform in Legal Procedure from the Prac titioner's Standpoint — A Review of the New Jersey Act." By Everett P. Wheeler. 75 Central Law Journal 144 (Aug. 23). "What I wish now to point out is the char acter of the fundamental principles on which this reform should be based. In doing so to a large degree I draw upon the 'Practice Act (1912) of the State of New Jersey; with rules of court and forms prescribed by said act.' . . . These principles may briefly be stated as fol lows : — "1. The pleading should give notice to the adverse party of the contention of the pleader and should not be required to do more. If in any respect they fail to do this, there should be a right of amendment, without prejudice to the proceedings had before the amendment. "2. The parties litigant should have the right to take their testimony wherever they can find it, upon giving reasonable notice to the ad verse party. "3. If any applications for interlocutory re lief are required, they should be made promptly and in one group. This is accomplished in the
English practice and in the New Jersey Practice Act by authorizing either party to take out a summons after issue is joined. . . . "4. There should be some summary method for disposing of sham defenses. The consti tutional guarantee of the right of trial by jury has led courts in some of the code states to deny the power of the court to strike out a defense as sham. Such decisions overlook the well-settled principle that fraud vitiates every thing; contract, deed, will and even the solemn judgment of the court. It has always been competent for the chancellor without a jury to set aside any instrument or proceeding for fraud. It would seem to be clear, therefore, that a judge has the right to strike out a fraudulent defense without the intervention of a jury. The New Jersey Practice Act makes provision for this. . . . "5. The trial should be conducted for the purpose of obtaining final decision upon the facts, reserving questions of law for subsequent consideration. All long arguments on the legal points should be suppressed. Great liberality in the introduction of evidence should be allowed. The narrow rules on this subject which often prevail show a lack of faith in the good sense of juries that is unwarranted. When specific ques tions arise which can be formulated and sub mitted a verdict upon these should be taken and go into the record. "6. After the verdict or decision of the trial judge, there should be full opportunity for argument, as to what judgment should be ren dered upon the facts as presented on the trial and found by the court or jury. In rendering this judgment, all technical errors in the process of arriving at the decision that do not affect the substantial rights of the parties should be disre garded. "7. An appeal should take up the whole record. The appellate court should have full power to render final judgment upon this record. . . . "8. Legislative provision for legal procedure should be brief. The regulation of the details and the modification of these details from time to time should be left to the court." "Argument in Favor of 'Tentative Sugges tions' for Reform in Procedure Formulated by the Missouri State Bar Association." By P. Tay lor Bryan. 75 Central Law Journal 168 (Aug. 30). "The last suggestion of the committee is that the trial judge should be permitted by in structions to comment on the evidence, pro vided that he shall also instruct the jury that they are the sole judges of the weight and credibility of the evidence. "This proposal has been attacked most vigor ously as one calculated to tear down the temple of liberty. Of course, it is not a novel proposi tion. It existed at common law, still exists in the federal courts and in the courts of many of the states. It proposes merely to put back into the judges the power rightfully belonging to them. . . . The objection most seriously urged against this proposition is that a prejudiced judge might by his comments on the evidence throw the decision of the case one way or the other. That is perfectly true, but he has a
